MANHATTAN (CN) — Some three years after Sarah Palin sued The New York Times over an editorial about toxic political rhetoric, the paper’s attorney told a federal judge that the former Alaska governor’s hunt for evidence has turned up empty.
“Governor Palin does not have one iota of evidence that the allegations are true," Time attorney Jay Brown told a judge during a Monday afternoon telephone conference.
In June 2017, the Times ran an editorial titled “America’s Lethal Politics” connecting the nation’s pattern of mass shootings to overheated political rhetoric, citing the shooting rampage by Jared Lee Loughner some six years earlier as one example. Loughner’s massacre killed six people and wounded Arizona Congresswoman Gabrielle Giffords, not long after Palin’s political action committee disseminated a map that put crosshairs over Giffords’ electoral district.
Though the Times initially found a “clear” and “direct” connection between Palin and the Loughner shooting, it quickly issued a lengthy correction noting “no such link was established.”
The case turns on editor James Bennet’s intent for inserting these quickly walked-back words.
"Even under your approach, you have to show that [Bennet] either knew or recklessly disregarded that the statements were false and published them anyway," U.S. District Judge Jed Rakoff pressed Palin’s attorney Shane Vogt.
“That's correct, your honor,” Vogt replied.
Palin likely will have a difficult time proving that defamatory intent.
Some two years ago, in a ruling opening with an ode to press freedom, Judge Rakoff dismissed the case.
“Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States,” Rakoff wrote in August 2017.
“In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not,” the judge continued. “But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity.”
But Palin’s lawsuit did not end there.
Appealing to the Second Circuit, Palin’s legal team cried foul on Judge Rakoff’s unusual fact-gathering hearing before ruling on the Times’ motion to dismiss.
The appellate court ruled that the inquiry was procedurally improper and sent the case to discovery, reviving the lawsuit but leaving the case’s broader ramifications for press freedom for another day.
“Nothing in this opinion should therefore be construed to cast doubt on the First Amendment’s crucial constitutional protections,” the Second Circuit cautioned in its ruling last August. “Indeed, this protection is precisely why Palin’s evidentiary burden at trial — to show by clear and convincing evidence that Bennet acted with actual malice — is high.”
Stretching nearly two hours, this afternoon’s hearing will decide whether Palin has built a case fit for a jury.
The Times argues that Palin failed to produce any evidence contradicting statements from Bennet’s deposition that he acted quickly to correct a mistake or that he even asserted a “direct causal link” between the Palin PAC mailing and Loughner’s shooting.
Published immediately after the shooting of Louisiana Republican Congressman Steve Scalise, the editorial was reviewing allegations of political incitement in general.
“It's not to say that violence in either case was caused by the political rhetoric,” Brown, the Times attorney, emphasized.
Palin claims Bennet’s deposition shows he knew that he used “strong words” that could have been read that way — and also knew that implication was false.
"A jury can find that he had a predetermined narrative that he wanted to get in here, and he did it,” Vogt told the judge.
Palin claims that motive was to balance criticism of a Democrat with one against a Republican. The social media profile of James Hodgkinson, the sniper who shot Scalise, suggested he was supporter of former presidential candidate Bernie Sanders.
“It was political score-keeping,” the attorney added.
There was no evidence suggesting that the Vermont senator’s rhetoric had any link to Hodgkinson opening fire at a congressional baseball practice.
“Neither one of them has any basis in fact,” Vogt said, referring to the criticism of Sanders and Palin in the wake of both shootings.
While denying any political motives at play, the Times argued that First Amendment would shield the paper even if Palin's allegation were true.
In support of that proposition, Brown cited Rakoff’s own words nearly three years ago.
"If such political opposition counted as evidence of actual malice, the protections imposed by Sullivan and its progeny would swiftly become a nullity," Brown quoted Rakoff writing in 2017, invoking the watershed Supreme Court ruling New York Times Co. v. Sullivan.
Like most court proceedings during the coronavirus pandemic, today's oral arguments took place via a telephone conference interrupted by an odd technical glitch. The Times counsel was briefly knocked off the line midway through his arguments to the sound of loud feedback. Rakoff drolly blamed the snafu on "Chairman Putin," a joke that drew laughter from the attorneys.
The proceedings continued without a hitch as the Times counsel got back on the line.
After hours of argument, Rakoff promptly ended the proceedings to physically attend another proceeding inside a Southern District of New York courthouse. He promised to rule on the motion for summary judgment by Aug. 10.
If the Times loses its motion, a federal jury will have the case on Aug. 24, two weeks later.
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